Published in: Think Africa Press

On Thursday February 13, 2014, Kenya’s Attorney General Githu Muigai appeared in The Hague to respond to claims that the Kenyan government has frustrated the prosecution in the case against President Uhuru Kenyatta.

The prosecution had accused Nairobi of “pure obstructionism” in its attempts to gather evidence such as phone data or financial assets, but Muigui refuted the claims, insisting that Kenya had wholly fulfilled its legal obligations. The prosecution remained unconvinced, however, and in response to queries over how long it would take the Attorney General to process their requests for information, Muigai merely cautioned: “I do not know and do not want to speculate.”

Kenyatta stands accused of crimes against humanity related to post-election violence in 2007/2008 when 1,200 people were killed and hundreds of thousands were displaced. In the absence of credible national courts able to hold the case impartially, the victims of the violence put their faith in the International Criminal Court (ICC). However, six years on, they are still awaiting justice, witnesses have withdrawn amidst allegations of intimidation and bribery, and the case has been delayed time after time.

Kenyatta, the first sitting president to be tried the ICC, has continually expressed his willingness to cooperate with the legal proceedings. Yet at the same time, he has publicly accused the ICC of being a corrupt tool of “recolonisation”, his attorneys have persistently called for the case to be dismissed outright, while his government has lobbied its international allies to call for a suspension of the case while he is in office.

Many of the high-level international battles and legal wrangling in case appear to be coming to a head. But as Fergal Gaynor, the legal representative for the victims in the case, highlights, the thing that is often neglected when talking about the Kenyatta case is the victims of the violence.

“Instead of using state funds to provide fair compensation to victims,” he says, “the accused used state funds to send high-level teams of diplomats around the world to argue for immunity, deferral or for rule changes on his behalf.” Indeed, it is worth remembering that while it might be a disaster for the ICC and notions of international justice if the Kenyatta case were to fall apart, the repercussions for Kenya’s victims would be all the more tragic.

Scant compensation

Six years after the post-election violence, little compensation or support has been offered to its hundreds of thousands of survivors. Meanwhile, Gaynor claims that the assistance which has been offered “has not been provided in an ethnically neutral fashion, but has favoured those from the Kikuyu or Kalenjin.”

Furthermore, some 300,000 of the 660,000 people internally displaced in 2007/8 are considered by the government to have now been ‘integrated’ into communities across the country. According to Gaynor, these groups were brought to what was considered to be their homeland, and “once they were dumped there, it appears that the government essentially concluded that it had no further duties towards them.” The government, he says, “did not help them to find shelter or land and did not give them financial assistance of any kind.”

“Victims often have very modest requests such as school fees or money for the hospital,” he continues. “Some of them have small business like tea shops and ask for little loans, so that they can buy equipment and get back on their feet.”

Psychological scars

However, these survivors also want much more than just assistance to rebuild the lives and livelihoods destroyed in the post-election unrest. Many witnessed their family or neighbours being killed and many were victims of sexual and other types of violence − for them, justice is the only way to heal their deep psychological wounds.

A married couple shared their story: Six years ago Cecilia (not her real name), along together with several other women from the Luo community, was gang raped by attackers from the Mungiki, a Kikuyu vigilante group. Beaten, humiliated, and powerless, the women were then doused in paraffin and set alight. They were badly burnt but managed to survive. Nine months later, Cecilia gave birth to a baby boy, the biological son of a Mungiki rapist. She is raising the child lovingly with her husband, who barely survived a brutal attack himself. They long for justice and believe that only with true justice will they be able to find forgiveness.

A dismissal of Kenyatta’s would deny this justice. Moreover, if the case against Kenyatta were dropped but the case against William Ruto − Kenyatta’s Kalenjin rival in the post-election violence but now deputy president − continues, ethnic divisions could be deepen once more.

So despite victims’ diminishing faith in the ICC as the Kenyatta case flails and appears to be gradually falling apart, they are still determined to see the perpetrators of the violence brought to trial and justice delivered.

“Their aims are big,” says Gaynor. “They do want a genuine trial. They want the trial to be fair in the full sense of the word.”

Whether their wishes come true or whether the Kenyan government continues to obfuscate, delay and harry the process until the charges are dropped remains to be seen. However, Attorney General Muigai’s unconvincing and purely technical defence of his actions yesterday won’t do much to inspire hope.